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Is it worth patenting your invention

You have just invented a unique device that has great market potential. You know that if you do not register your ownership of this device, you have no way to stop other people from stealing your great idea. It seems obvious that you should patent your device. However, this may be a waste of considerable time and money.

Patents give little protection

The fact that you own a patent does not automatically protect your device from being copied. If you find that somebody has copied your device and is selling it on the open market, the patent office is not going to act on your behalf. You need to find a patent litigation attorney to take legal action against the person or organization that has infringed your rights.

Once you set off on the road to lawsuits, you are exposing yourself to an open-ended legal bill. If you have millions in the bank, you may be able to afford this risk. The reality is that most small businesses would find it difficult to pursue a lawsuit, especially if the defendant has vastly superior resources.

Even if you have the resources to sue, you must depend on the outcome being favorable if you are to have any chance of recovering your legal fees and/or punitive damages. Furthermore, you can be involved in years of litigation, including appeals, before a final decision is made by the courts.

Patents are not global

You may have heard of the Paris Convention and the Patent Cooperation Treaty. These provide two ways in which you can extend your patent throughout the world. However, they do not make it as simple as issuing a single patent application and having that recognized globally. They merely give you time to apply for patents in other countries.

You will still have to file with the patent registration authorities in every country in which you want to protect your device. This clearly takes a huge amount of time. Additionally, you will have to pay registration fees in every patent office. On top of registration fees, you may also be faced with maintenance and other fees. You may have to pay for professional translations, so the total cost can be prohibitive.

Patents are often easy to work around

When you file for a patent, you have to provide detailed design specification as part of your application. When your patent is approved, that information goes into the public domain. That means unscrupulous manufacturers can get hold of your designs. This makes it easy for them to make slight modifications and produce almost exact replicas.

If you sue, the onus is on you to prove that the defendant’s design is materially the same as yours, something that can be quite difficult to do. The decision often rests with a judge who may have little knowledge about the technological or engineering aspects of your device and that of the defendant. It’s almost a case of potluck as to whether or not you will win.

If you need to sue, you will have to engage the services of a legal firm skilled in patent law. As with all specialist professional services, fees tend to be extremely high. You will almost certainly have to pay hefty legal fees upfront, and there is no guarantee you will be able to recover those fees from the defendant even if you win your lawsuit. Your legal team will probably have to engage the services of other experts, such as engineers or designers, to support your lawsuit, and this will cost even more money.

Factors in making your decision

You should do a realistic assessment about whether your new product is going to generate enough income to make paying for patents, and defending infringements, worthwhile. Even if your idea is highly unique and is bound to be a success, do you have the skills and resources to get the maximum yield from it?

The reality is that small businesses are unlikely to gain any benefit from filing patents. However, if you try to attract investment finance, you will likely find that venture capital investors will want some protection in the form of patents, and they are less likely to invest if your patents are not already in place.

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